Monthly Archives: November 2010

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Three months ago, we reported on Pontiac-based TheraMatrix winning a $4.5 million lawsuit against Blue Cross Blue Shield of Michigan for breach of contract and tortious interference with economic and business relationships (“Their (Blue) Cross to bear,” Aug. 23, 2010).

Now, this matter is getting national attention, thanks to a USA Today story that also appears in the Detroit Free Press (both papers are owned by Gannett). The Freep also published a story that talks about a recently filed U.S. Justice Department lawsuit against the Blues.

Here’s an excerpt:

As health care costs soared nationally, a small Michigan firm gave Ford Motor Co. a proposal to cut its physical therapy costs. The automaker signed up for an in-state pilot program, which was so successful Ford expanded it last year to cover about 390,000 employees, retirees and their families nationwide.

Yet the cost-saving program created by Pontiac-based TheraMatrix has come under attack from Blue Cross Blue Shield of Michigan.

Court records allege Blue Cross used its position as the state’s dominant insurer to try to crush TheraMatrix as it worked to also sign up Chrysler and General Motors.

A USA Todayreview of hundreds of pages of e-mails and internal documents that are part of a lawsuit TheraMatrix filed against Blue Cross indicates that TheraMatrix’s efforts to carve out a niche market in managing outpatient physical therapy costs was seen as a threat by officials at Blue Cross and by some Michigan hospitals. …

The dispute provides a window into some of the factors that make overhauling the nation’s health care system so difficult. The aggressive tactics employed against TheraMatrix raise questions about whether relationships between hospitals and insurers are inflating medical prices and stifling competition needed to control costs.

Court records depict Blue Cross — a nonprofit created under Michigan law to provide affordable health care — as working with a major hospital to stop expansion of TheraMatrix’s program. They also reveal that Blue Cross barred TheraMatrix from the insurer’s medical provider network, which covers most Michigan patients.

A Detroit-area jury awarded TheraMatrix $4.5 million in July, finding that Blue Cross breached an agreement with TheraMatrix to process claims for its Ford program, then wrongfully interfered with TheraMatrix’s efforts to launch a Chrysler program. Blue Cross has appealed.

Last month, the U.S. Justice Department sued Michigan’s Blue Cross, accusing the insurer of a different kind of anticompetitive behavior: paying hospitals higher prices for medical care in exchange for a promise they would charge competing insurers as much as 40% more than they charge Blue Cross. Blue Cross says the suit is without merit. …

From the Michigan Probate Judges Association comes word that Wayne County Probate Court Chief Judge Milton L. Mack, Jr. is the 2010 recipient of the National College of Probate Judges’ Treat Award for Excellence.

Mack is the first Michigan judge to receive the award, which was presented yesterday at the National College of Probate Judges’ annual meeting.

From the MPJA:

Judge Susan L. Dobrich, Chief Judge of Cass County Probate Court, and Hon. Patrick J. McGraw, Chief Judge of Saginaw County Probate Court, took the lead in nominating Mack for the Treat Award. They were supported by numerous probate judges and others who praised Mack for his efforts to reform Michigan’s mental health system.

“Judge Mack has made countless contributions to the improvement of the administration of justice,” Dobrich and McGraw wrote.

“Judge Mack has been unyielding in finding humane and alternative solutions for the mentally ill.”

Dobrich is president of the Michigan Probate Judges Association; McGraw is chair of the MPJA’s Governance Committee.

Mack, who has served as a probate judge for 20 years, has advocated changing the standard for courts to order involuntary treatment of mental illness, in order to promote early treatment and reduce crime related to mental illness.

He has proposed changes to the Michigan Mental Health Code to improve access to services for the mentally ill. In April 2010, Chief Justice Marilyn Kelly of the Michigan Supreme Court highlighted Mack’s efforts in her “State of the Judiciary” address before the Legislature.

Mack has written articles on mental health reform, guardianship, and mediation, including “Involuntary Treatment for the 21st Century”, which was published in the Quinnipiac Law Journal. A frequent lecturer on mental health issues, Mack was a featured speaker at the 2009 Spring Conference of the National College of Probate Judges.

Established in 1978, the Treat Award is presented annually to one who has made “a significant contribution to the improvement of the law or judicial administration in probate or related fields.”

The award is named in honor of Judge William W. Treat, founder and President Emeritus of the National College of Probate Judges. Previous recipients include U.S. Supreme Court Justice Sandra Day O’Connor, Professor James Casner of Harvard Law School, and other prominent legal scholars.

No matter how you voted in the Michigan Supreme Court election last week, it’s hard to say we won’t all miss gems like the one that Justice Alton T. Davis bestowed on us at oral arguments last week.

He told one of the litigants that her argument was like “meringue on a pie. It looks nice, but there’s not much there.”

Classic.

Another favorite from this session was when he suggested during a discussion about whether or not law school students ought to be allowed to present oral arguments at the Michigan Court of Appeals. He suggested that it’s important to remember the court is not considering allowing random people to just walk in off the street to argue at the Court of Appeals.

In a setting where common sense doesn’t always intersect with the law, it’s nice from time to time to be jolted back from the ether to the real world.

Our national state nightmare is over. OK, so that overstates it a little (or a lot). From the AP:

LANSING, Mich. (AP) — A lawyer for an assistant state attorney general accused of harassing the gay student assembly president at the University of Michigan has been fired.

Philip Thomas says Andrew Shirvell was fired Monday.

Shirvell was at a disciplinary hearing Monday at the Michigan attorney general’s office related to the issue.

The attorney general’s office is declining immediate comment.

Shirvell went on a leave about a month ago after national criticism erupted over a blog he wrote characterizing student leader Chris Armstrong as a "racist" and "liar" who promoted a "radical homosexual agenda."

Thomas has said Shirvell’s actions were constitutionally protected as free speech.

Two attorneys and a Saginaw County probate judge are among those honored by the Foster Care Review Board (FCRB) at its recently concluded 2010 conference.

Saginaw County Probate Judge Faye Harrison received the Jurist of the Year Award for her work as a family court judge.

Harrison, a 30-year veteran, was nominated by Barbara Hill, chair of the FCRB volunteer board in Saginaw County, as “a wonderful and expressive advocate for children’s justice who has truly made a difference in the lives of children in Saginaw County.”

Harrison, a past president of the Michigan Probate Judges Association, was cited for her leadership on the state and national level.

Tracy Green, managing attorney of the Detroit Center for Family Advocacy, received the FCRB’s Parent Attorney of the Year Award for her representation of parents in child welfare cases.

University of Michigan Law School Prof. Vivek Sankeran, who nominated Green, praised her as a “passionate and tireless advocate for parents.” Sankeran described Green as “nurturing and attentive … [she] is well respected by jurists and her attorney colleagues in Wayne County, where she practices, for her professionalism, expert knowledge and zealous representation of her clients.”

The Lawyer-Guardian Ad Litem of the Year Award was presented to Viola King, an attorney with the Juvenile Law Group in Wayne County.

Wayne County Family Court Referee Ilene Weiss Fruitman, who nominated King, described King as “the best and most professional representative and advocate for children of all who have practiced before me in my 13 years on the bench.”

King is esteemed by her colleagues in the child welfare system, Fruitman reported, and “has the rare quality of truly listening to what [her clients] are saying, as well as being able to hear what they are not saying.”

The FCRB, which was created by the Michigan legislature in 1981, serves as a statewide system of third-party review of the foster care system.

The program is administered by the State Court Administrative Office, the administrative agency of the Michigan Supreme Court, and is comprised of citizen volunteers who serve on one of 30 local review boards throughout the state.

From the Brennan Center for Justice comes the not-surprising news that Michigan topped the nation in campaign cash spent for television ads on behalf of state supreme court candidates.

Michigan saw the highest overall spending on supreme court TV ads, with about $5.1 million spent on airtime, according to TNS Media Intelligence/CMAG; Ohio is second with more than $1.9 million in airtime spending. In both of these states, four candidates competed for two Supreme Court seats. …

The highest level of spending in a single-candidate retention race was in Illinois, where incumbent Justice Thomas Kilbride spent more than $1.6 million on TV airtime through Nov. 1. …

Four of the top five spenders on TV airtime in supreme court elections are non-candidate groups. The Michigan Republican Party ranked first overall in TV spending (just over $2 million).Kilbride ranked second ($1.6 million); the Michigan State Democratic Party ranked third ($1.4 million); the Partnership for Ohio’s Future ranked fourth (about $846,000); and the Law Enforcement Alliance of America, which spent more than $780,000 in support of two Republican candidates for the Michigan Supreme Court, ranked fifth.

The Brennan Center’s report noted that in Michigan

non-candidate groups, led by the state Republican and Democratic parties and the Virginia-based Law Enforcement Alliance of America, accounted for more than 80 percent of all TV spending.

Bert Brandenburg, executive director of the center’s Justice at Stake Campaign, asserted, “Political parties and independent groups hijacked this election, heavily outspending the candidates, and ads on both sides were riddled with questionable claims.

Salvation Temple Church, is a Christian Church that entered into a purchase agreement for the purchase of property known as 25000 N. Chrysler Dr., Hazel Park, Michigan. The property, vacant since 2002 and last used as a banquet facility, is zoned BC-1, Chrysler Business District, under the City of Hazel Park Zoning Ordinances. Assembly halls are permitted uses in the BC-1 District; religious uses are not. Hazel Park only allows religious uses to locate in Residential Districts, which are “100%” developed, thereby totally excluding any new religious uses within the City.

In February 2010, Salvation Temple applied to the City Zoning Board of Appeals for a variance to allow it to use the vacant assembly hall as a place of worship. The request was denied. Salvation Temple notified the City of Hazel Park that its decision to exclude religious uses violates the United States Constitution and the Religious Land Use and Institutionalized Persons Act, 42 USC 2000cc et al, and asked to resolve this matter. The City refused to respond, and therefore, suit was filed. Salvation Temple is represented by Daniel Dalton of Dalton, Tomich & Pensler, plc, a noted religious land use expert.

The Hazel Park ordinance in question was adopted in 2005 three months after an Islamic group sought City approval to open a Mosque in a nearby location. After the use was denied, the City Planner recommended the Mosque locate at 25000 N. Chrysler Drive, the building at issue. The City, however, did not follow the recommendation of its planner. Rather, the City introduced and later passed the zoning Ordinance “eliminating religious uses.”

The City denied zoning approval to Salvation Temple based on the 2005 ordinance which prohibited new religious institutions from opening on industrial or commercial property within the limits of Hazel Park. The Ordinance allows for religious institutions to open, with the approval of the City, in residential areas. However, according to their own records, Hazel Park is “100% developed for residential use” and does not have a collection of residential property available large enough to house a religious institution with parking.

Salvation Temple is at risk of losing its worship facility by the end of the year. “Salvation Temple wishes to continue its service to the people of Hazel Park. The city’s unconstitutional behavior has made this impossible,” said Dalton. The U.S. constitution provides that Congress shall make no law that prohibits the free exercise of religion. This prohibition has been extended to all state and local governments through the enactment of the Religious Land Use and Institutionalized Persons Act, 42 USC 2000cc, et seq. Congress unanimously passed RLUIPA in 2000 to address local government discrimination in addressing land use applications submitted by religious organization and in doing so, leveled the playing field for religious uses and secular uses. Further, the Michigan Constitution expressly encourages religion as central to government and the pleasure of mankind and states, in part, that every person shall be at liberty to worship God according to the dictates of his or her own conscience.

Salvation Temple Church challenges the City of Hazel Park, Michigan for its violation of the United States Constitution, the Michigan Constitution, and the Religious Land Use and Institutionalized Persons Act.

The Michigan Supreme Court has released for comment a wholesale revision of the court rules pertaining to attorney misconduct.

ADM File 2006-38 is the result of a proposal from the Attorney Grievance Commission and input from the State Bar of Michigan. The Court notes that the proposal has been in the works for four years, and, in some instances, there are competing versions of the proposed changes.

The Attorney Grievance Commission submitted its proposal to the Court in 2006. The Court considered various provisions within the proposal, and before final review for purposes of publication, invited the State Bar of Michigan to convene a workgroup to review the proposal and submit preliminary feedback on it. The SBM did so, and the Court proceeded to final review of the proposal with the benefit of the input from both the AGC and the SBM. Thus, in several places there are alternative versions of language offered that reflect differing suggestions of the AGC and the SBM on a particular issue. In addition, the AGC submitted updated language in early 2010, some of which is reflected in the order.

The Court has provided some assistance for working through the 71-page proposal.

In addition to the order for publication, the Court is releasing two documents that may be helpful in understanding the proposed changes. One document is a jointly submitted AGC/SBM memo that describes the main points of difference in the proposals.

Another document is a three-column chart that compares the current rule with the AGC proposal and any alternative language recommended by the SBM. The Court’s order in several places varies from the language offered by either the AGC or SBM, and where it does so, the staff comment describes why the Court chose the language it did.

A significant proposed change to MCR 9.104 has placed the AGC and SBM at odds.

The AGC’s version, Alternative A, would expand the list of acts or omissions that would be considered misconduct and grounds for discipline. Under the AGC’s proposal, attorneys could not make an agreement or attempt to obtain an agreement that:

(a) the professional misconduct or the
terms of a settlement of a claim for professional misconduct shall not be reported to the administrator;

(b) the plaintiff shall withdraw a request for investigation or shall not cooperate with the investigation or prosecution of misconduct by the administrator; or

(c) the record of any civil action for professional misconduct shall be sealed from review by the administrator.

(B) It is also misconduct and a ground for discipline if, through multiple acts and omissions, a lawyer demonstrates the absence of fitness to be entrusted with professional and judicial matters and to aid in the administration of justice as an attorney and counselor and as an officer of the court. MCR 9.103(A). This is misconduct for which discipline can be imposed for the protection of the public, the courts, and the legal profession. MCR 9.105. In proceedings brought under this subrule, prior acts and omissions of the lawyer are admissible.

The SBM’s proposal, Alternative B, does not include the AGC’s proposed changes and eliminates four grounds for discipline that exist in the current rule, for which there is no counterpart in the current Michigan Rules of Professional Conduct. Under the SBM’s proposal, the following acts or omission would be struck from MCR 9.104:

(1) conduct prejudicial to the proper administration of justice;

(2) conduct that exposes the legal profession or the courts to obloquy, contempt, censure, or reproach;

(3) conduct that is contrary to justice, ethics, honesty, or good morals; …

(5) conduct that violates a criminal law of a state or of the United States; …

The SBM’s Alternative B drew a strong rebuke from Justice Maura Corrigan, so much so that she would not even have published Alternative B for comment.

Under Alternative B, the State Bar would circumscribe the existing grounds for attorney discipline and impinge on the Judicial Tenure Commission’s ability to discipline judges. By contrast, the Attorney Grievance Commission’s cogent proposed amendment of MCR 9.104 (Alternative A) not only lacks the flaws of Alternative B, but it also maintains or in certain cases expands the existing grounds for discipline. Consequently, I support publishing Alternative A for public comment, but I oppose publishing Alternative B at this juncture. …

[T]he State Bar tends to ignore the practical effect of Alternative B – that is, Alternative B narrows significantly rather than maintains the existing grounds for discipline. For example, one ground for discipline under the current rule is “conduct that exposes the legal profession or the courts to obloquy, contempt, censure, or reproach.” MCR 9.104(A)(2).

The State Bar proposes deleting this ground for discipline although MRPC 8.4 has no parallel provision. I would not circumscribe the existing grounds for attorney discipline. Insofar as the State Bar supports such efforts, I think that its proposal offends the underlying purpose of disciplinary proceedings, which this Court enacted not “as punishment for wrongdoing, but for the protection of the public, the courts, and the legal profession.” MCR 9.105.

Want to weigh in on the proposal? The comment period closes March 1, 2011. Address your comments to the Supreme Court Clerk, Box 30052, Lansing, Mich. 48909 or e-mail the clerk at MSC_clerk@courts.mi.gov.

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